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CHAPTER L
 
Introductory and demoted tenancies
Introductory tenancies
 
Introductory tenancies are a form of probationary tenancy introduced by Housing Act 1996 and granted by most local authorities. During the probationary period (a year that can be extended to 18 months) a landlord can recover possession by serving a notice of possession proceedings and bringing a claim for possession. Provided the statutory procedure, which includes the tenant’s right to request a review of the decision, has been complied with the court must make an order for possession, except where the tenant’s eviction would be a disproportionate interference with Article 8 or unreasonable within the meaning of administrative law. Where a local housing authority elects to operate an introductory tenancy regime in accordance with Housing Act 1996 s124, all new periodic tenancies and licences which would otherwise be secure tenancies are introductory tenancies or licences unless, immediately before the new tenancy, one or more of the tenants was either a secure tenant or an assured tenant of a registered social landlord. Tenancies remain introductory tenancies until the end of the ‘probationary period’. Where a claim for possession is issued the probationary period is extended until the claim is finally determined.
Introductory tenancies – notices, reviews and procedure
 
Court of Appeal
 
Camden LBC v Stafford
[2012] EWCA Civ 839, [2012] 4 All ER 180; [2012] HLR 39; Times 6 September 2012, 20 June 2012
 
Possession claim dismissed where a reviewing panel had failed to confirm the landlord’s decision to seek possession and had instead suggested that alternative measures be attempted first
Camden gave notice to Ms Stafford, who was an introductory tenant, that it would seek possession. She applied for a review of the decision to seek possession. The reviewing panel upheld the notice but decided that Camden should, rather than issuing a claim for possession straight away, pursue alternative measures first. Only if those measures failed should a claim for possession be brought. The alternative measures failed. Without serving a further notice, Camden sought possession. HHJ Bailey dismissed the claim because it was a condition for bringing a possession claim against an introductory tenant that, if there had been a review, the decision on review had to have confirmed the earlier decision to seek possession (Housing Act 1996 ss127–129). It had not done so.
The Court of Appeal dismissed the council’s appeal. The reviewing panel had either confirmed the earlier decision without qualification or it had not. On the wording of the review decision letter, there had not been an unqualified confirmation. It was not possible to make confirmation conditional. Without unconditional confirmation the court had no jurisdiction to grant possession.
Cardiff CC v Stone
[2002] EWCA Civ 298; [2003] HLR 47; (2002) Times 19 February
 
No requirement for second notice where conditions imposed on previous review breached
The defendant was an introductory tenant of the council. In April 1999 she received a section 128 notice of possession proceedings alleging that she had arrears of rent of over £400. She applied for a review. That resulted in her being told that proceedings would not be issued if she cleared the arrears at the rate of £3 per week. The arrears later increased to over £500 and the council claimed possession without giving a further (or ‘second’) notice of proceedings. The judge granted possession and the tenant appealed.
The Court of Appeal held that there is no requirement to give a further or second notice. Housing Act 1996 s127 imposes a mandatory duty on the court to grant possession if ‘a’ notice has been served in compliance with section 128. A requirement to serve a further notice would introduce unnecessary formality and might deter an authority from taking a humane ‘wait and see’ approach before issuing proceedings.
Islington LBC v Dyer
[2017] EWCA Civ 150; [2017] HLR 20, 22 March 2017
 
A Housing Act 1996 s128 notice was valid even though it failed to contain all of the information required by statute as the leaflet accompanying the notice did
Mr Dyer was an introductory tenant. Islington gave notice that it would seek possession against him after an alleged assault at the property. He did not exercise his right of review under Housing Act 1996 s128 within the prescribed time limits. He raised a defence that the section 128 notice was defective in that although it contained information as to the right of review under section 128(6), it did not contain the information contained in section 128(7) directing him to seek legal advice. Islington claimed that other documentation served with the notice in a separate document entitled ‘Information Leaflet’ contained the information concerning legal advice. District Judge Sterlini held that the notice was valid and ordered possession. HHJ Baucher allowed Mr Dyer’s appeal and set aside the possession order, finding that the requirement in section 128(7) was mandatory and that, as a matter of construction, the notice did not include the required information. Islington appealed.
The Court of Appeal allowed the appeal. It proceeded on the assumption that the provisions of section 128(7) are mandatory. As there is no prescribed form for a section 128 notice, the starting point is whether the document or documents relied on can reasonably be described as a notice. To do so, they have to give the tenant notice of the intended proceedings in compliance with the section (s128(1)). To comply with the section, the notice must contain the other information that section 128 prescribes. There is nothing in section 128 that limits the notice to a single page or a single document. No such restriction can be spelt out of the statute. It is therefore a question of objective fact in every case whether the documents relied on do, or do not, form part of the notice. HHJ Baucher was wrong to attach so much importance to the way in which the relevant documents were drafted and to the nomenclature used in them. Although the council called one document the ‘Notice’ and the other an ‘Information Leaflet’, that could not override the substance of the documents or be determinative of the statutory question. From an objective point of view, both documents were intended to and did perform the function of a section 128(1) notice. The ‘Notice’ document directed the tenant in terms not only to that document but also to the notes in the ‘Information Leaflet’. The ‘Information Leaflet’ stated that it was intended ‘to accompany Notice of Proceedings’. Although the language used fell short of an express incorporation of the contents of the ‘Information Leaflet’ into the ‘Notice’ document, any reasonable tenant receiving the letter and the documents it enclosed would have realised that s/he needed to read the contents of both documents together to understand the action which the council was proposing to take. Looked at objectively, the two documents functioned together as the notice for the purposes of section 128, even though only one of them was in fact called the ‘Notice’.
Salford CC v Garner
[2004] EWCA Civ 364; [2004] HLR 35; (2004) Times 10 March
 
Proceedings started when claim form issued; tenancy started when keys handed over
Mr Garner’s introductory tenancy agreement stated that the tenancy was to begin on 12 November 2001. However, he was handed the keys and told he could take immediate possession on 9 November 2001. He began to occupy the premises on 10 November. Salford sought possession on the ground of rent arrears. It lodged the claim form at the county court on 7 November 2002, but the proceedings were not issued by the court until 11 November. Mr Garner defended, contending that his tenancy had become a secure tenancy after one year which, he claimed, was 9 November 2002. A district judge dismissed the claim but a circuit judge allowed the council’s appeal.
The Court of Appeal allowed Mr Garner’s appeal. (1) Proceedings are started by the issue of the claim form by the court (CPR 7.2 and PD7, para 5.1). In this case that took place on 11 November 2002. That was the date when the council began the proceedings for the purposes of Housing Act 1996 s130. (2) The housing officer’s decision to hand over the keys of the property passed possession to Mr Garner and therefore the tenancy started on 9 November 2001. Furthermore, Mr Garner had provided the council with sufficient consideration for the three days that the property had been occupied prior to 12 November 2001, as (a) he would have been obliged to pay rent for that period, and even if that was not the case, (b) the council would have been bound to observe the obligations contained in the tenancy agreement that he had agreed to on 9 November 2001.
High Court
 
R (Chowdhury) v Newham LBC
[2003] EWHC 2837 (Admin); 27 November 2003
 
Council entitled to make judgment that tenants not suitable
The claimants were granted an introductory tenancy. They applied for housing benefit. The application for housing benefit was incorrectly filled in by them. Newham wrote requiring information but there was no response and a further letter was sent. The claimants then supplied some of the necessary information but, because they had not supplied it all, their application for housing benefit was refused. Benefit was granted at a later date but the council refused to backdate it to the beginning of the tenancy. As a result of the arrears, Newham served a section 128 notice. There was no request for a statutory review, but Newham held one. The claimants did not attend and made no written representations. The panel decided that the council had acted correctly in serving a notice to terminate on the basis that the claimants had broken their tenancy conditions by accruing arrears. Newham began possession proceedings but they were adjourned to allow the claimants to apply for judicial review.
Grigson J dismissed the application. In view of the history of the dealings between the claimants and the council, the council had been entitled to make a judgment that they were not suitable tenants. It was fully justified in pursuing possession proceedings. The role of a tenant was not a passive one. Mr Chowdhury had been advised repeatedly of the rent arrears and had failed to respond. If he did not understand the obligations that he was undertaking when entering into a tenancy agreement he should have taken steps to discover what they were. Furthermore, if he wanted housing benefit it was incumbent on him to deal with the application efficiently. If there were problems in providing the necessary information he should have notified the housing benefit department. If he ignored correspondence and requests for further information, the failure lay at his door.
R (Forbes) v Lambeth LBC
[2003] EWHC 222 (Admin); [2003] HLR 49; (2003) Times 10 March
 
On facts review did not uphold decision in section 128 notice but reversed it, albeit with a warning; tenant ought to have opportunity to review where reasons changedTimes 19 February
On 3 March 2000 Lambeth granted Mr Forbes, a 62-year-old vulnerable homeless person, an introductory tenancy commencing on 20 March 2000. On 28 September 2000 the police raided the property and found drugs. On 13 October 2000 they served a s128 notice indicating that they intended to apply to court for possession because the premises were being used for selling drugs and immoral purposes. Mr Forbes requested a review. After the review the council wrote stating that it had ‘decided not to proceed with terminating your tenancy but will be monitoring your tenancy for a period of 12 months and then will review the situation and advise you’. On 9 March 2001 the council wrote stating that in view of continuing complaints of noise nuisance it had ‘no alternative but to continue the legal proceedings commenced when the Notice of Proceedings for Possession was served’. A possession claim was issued on 14 March 2001. Recorder Atkins adjourned the possession claim to enable Mr Forbes to apply for judicial review.
Crane J heard the application for judicial review and Lambeth’s appeal against the decision to adjourn. He held that, in the light of Cardiff CC v Stone (Cardiff CC v Stone), a council may uphold a notice but suspend or defer the actual taking of proceedings. However, the letter sent to Mr Forbes after the review did not have the same effect as the letter in Stone, which made it clear that the decision was being upheld. Here, the original decision was not confirmed. There was in reality a decision to reverse or quash the original decision, albeit with a warning about future conduct. That conclusion was supported by the absence of any reasons, which would have been required if the decision had been confirmed (s129(5)). Second, in a case such as this, where the reasons for the decision have changed, the tenant ought at least to be given an opportunity to seek a review, not only to question the alleged facts, but also, crucially, to argue that it was not reasonable to require possession. If that were not done, the scheme of the Act would not be ECHR compliant. Crane J’s preliminary conclusion was that the Recorder’s order should be varied to a refusal of possession and a dismissal of proceedings.
R (Laporte) v Newham LBC
[2004] EWHC 227 (Admin); [2004] 2 All ER 874
 
Where additional grounds relied on in review, additional section 128 notice should be served
Ms Laporte was granted an introductory tenancy of a flat by Newham in November 2001. Her rent account fell into arrears. In June 2002, Newham served a Housing Act 1996 s128 notice of proceedings for possession relying on the arrears. Ms Laporte requested a review hearing. Before the hearing, Newham sent her a letter which cited the grounds for the initial decision, and stated that there had been allegations of nuisance against her son which would be an issue at the review hearing. On review the original decision was upheld because insufficient payments had been made towards the arrears, there had been additional complaints against her son and Ms Laporte did not attend. Ms Laporte applied for judicial review, arguing that the grounds relied on at the review included the allegations of nuisance, which were not part of the original grounds in the section 128 notice.
McCombe J dismissed the application. It was clear that the review decision took into account both the allegations of nuisance and the rent arrears. Although the correct procedure would normally be for a landlord to serve an additional notice under section 128, in this case this Ms Laporte had not suffered any prejudice. Newham’s evidence, which was accepted, was that, in view of the arrears, the same decision would have been reached, even without the allegations of nuisance.
R (McDonagh) v Salisbury DC
(2001) Times 15 August, QBD
Review hearing valid; review not a nullity simply because late; possession proceedings can continue at same time as review
On 22 May 2000 Salisbury District Council granted Ms McDonagh an introductory tenancy under Housing Act 1996 s124. Complaints were made by neighbours and the police were called. On 5 September 2000 the council served a section 128 notice of proceedings for possession. Ms McDonagh sought a review of the council’s decision (s129(1)). On 18 October 2000 the review took place before the Introductory Tenancy Review Board, which decided that the parties should go to court for the matter to be decided. Permission was given for Ms McDonagh to apply for judicial review by Richards J who felt that the review board had adopted the wrong test of the council’s decision by using a Wednesbury reasonable test instead of a substantive merits approach. A second review was then fixed for 17 May 2001 but Ms McDonagh declined to attend. At this review, the members of the review board had no knowledge of the case and there was a different clerk. The findings were against Ms McDonagh but she refused to accept that that review board’s hearing had cured the council’s errors.
Jackson J held that:
1)In view of the Introductory Tenants (Review) Regulations 1997, the review board hearing on 18 October 2000 had been faulty.
2)(a) It was implicit under regulation 5 that Ms McDonagh should have had a proper opportunity to read the documents of the case and be properly prepared but she had not attended the proceedings on 17 May 2001.
(b)All the evidence indicated that the review board had properly sorted and sifted through the information before it.
(c)The review board was entitled to consider events both before 18 October 2000 and after.
(d)The review board had applied the correct standard of proof.
(e)Ms McDonagh’s personal circumstances would not have changed the overall picture.
Accordingly the second review hearing was not invalid.
3)Sections 128 and 129 were not incompatible with Article 6 ECHR.
4)A section 128 review is not a nullity simply because it is carried out after the date specified in the notice.
5)There is nothing to prevent possession proceedings continuing at the same time as the review.
Wolverhampton City Council v Shuttleworth
27 November 2012, QB
 
A direction to fill out a form did not invalidate a notice even though the direction was not a requirement of Housing Act 1996 s128
Wolverhampton Council granted Ms Shuttleworth an introductory tenancy. After receiving complaints of anti-social behaviour, the council served a Housing Act 1996 s128 notice. The notice informed her that she had a right to review. It stated: ‘You have the right to request a review … Any request must be made within 14 days of service of this notice. To make a request for a review you should complete the enclosed form and return it to your local housing office’. Ms Shuttleworth did not request a review. The council issued a claim for possession. HHJ Mithani struck out the claim for possession on the basis that the notice was defective in that it restricted the way in which Ms Shuttleworth could request a review. The council appealed.
Keith J allowed the appeal. He addressed the question of construction of the notice. Did the notice and the form stipulate that using the form was the only way in which Ms Shuttleworth could request a review? There was a contrast between the words ‘must’ and ‘should’. ‘Must’ meant that the time limit of 14 days was mandatory. The fact that ‘should’ was used in relation to filling in the form should be treated as a recommendation or encouragement only. There was nothing on the notice to say that a tenant had to fill in the form. The notice was valid. Keith J made a possession order to take effect in 28 days.
Introductory tenancies – Article 8 and public law challenges
 
Supreme Court (formerly House of Lords)
 
Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby
[2011] UKSC 8; [2011] 2 AC 186; [2011] 2 WLR 287; [2011] 2 All ER 129; [2011] PTSR 512; [2011] HRLR 18; [2011] HLR 23; [2011] 1 P&CR 20; [2011] LGR 363; [2011] UKHRR 548; (2011) Times 1 March, 23 February 2011
 
Article 8 ECHR requires courts to have the power to consider whether a possession order would be necessary in a democratic society; this proposition applies to all cases where a local authority seeks possession of a person’s homeTimes 4 November; 3 November 2010
Following Manchester CC v Pinnock (Manchester CC v Pinnock), the Supreme Court considered whether and to what extent introductory tenants and licensees occupying premises provided under the homelessness regime in Housing Act 1996 Part 7 can rely on Article 8 as a defence to a possession claim. Lords Hope and Phillips delivered concurring speeches, with which the other five Supreme Court justices agreed.
Lord Hope noted that in Pinnock the Supreme Court held that Article 8 requires courts asked to make possession orders under Housing Act 1996 s143D(2) against demoted tenants to have the power to consider whether the order would be necessary in a democratic society. He held that ‘this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a person’s home for the purposes of Article 8’ (para 3). ‘There is a sufficient similarity between section 127(2) and section 143D(2) to apply the reasoning in Pinnock to introductory tenancies also’ (para 56). Lord Phillips could ‘see no principled basis for distinguishing between the two’ (para 79). However, the obligation to consider proportionality only arises if the property constitutes the occupant’s home – the individual has to show sufficient and continuing links with a place to show that it is his or her home for the purposes of Article 8, but ‘[i]n most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of Article 8’ (Lord Hope at para 33). However:
The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim (para 33).
A ‘court should initially consider [that question] summarily and if it is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed’ (para 34 and Lord Phillips at para 92). ‘[T]he threshold for raising an arguable case on proportionality [is] a high one which would succeed in only a small proportion of cases’ (para 35 and Lord Phillips at para 92). ‘[T]here will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order’ (para 37 and Lord Phillips at para 88). These conclusions apply equally to introductory tenancies and licensees under Part 7. Although there is no express provision in Part 7 which empowers a court to refuse to grant a possession order, ‘there is nothing in Part VII … which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so’ (court’s emphasis, para 39). Lord Phillips stated that: ‘[c]ompatibility [with Article 8] can be achieved in the case of [both Housing Act 1996 s127(2) and s143D(2)] by implying the phrase “provided that Article 8 is not infringed”’ (para 98). In relation to introductory tenancies, Lord Hope stated that the ‘court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering the facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view’ (para 53).
The court also considered Housing Act 1980 s89 which provides that in some cases the date for the giving up of possession shall not in any event be postponed to a date later than six weeks after the making of the order. Notwithstanding what was said in Pinnock, the court stated that no evidence had been put before it to show that in practice the maximum period of six weeks was insufficient to meet the needs of cases of exceptional hardship. ‘[A]ny reading down of the section to enable the court to postpone the execution of an order for possession of a dwelling-house which was not let on a secure tenancy for a longer period than the statutory maximum would go well beyond what [Human Rights Act 1998] section 3(1) … permits’ (para 62). However, section 89 does not:
… take away from the court its ordinary powers of case management. It would be perfectly proper for it, for example, to defer making the order for possession pending an appeal or to enable proceedings to be brought in the administrative court which might result in a finding that it was not lawful for a possession order to be made (para 63).
The court declined to deal with procedural aspects, stating that matters of this kind were ‘more appropriate for a practice direction’ (para 49 and Lord Phillips at para 118). However, Lord Phillips did say:
I do not believe that the Strasbourg Court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair … I do not suggest that there is any burden on a local authority, in the first instance, to justify to the court its application for a possession order or to plead the reason for seeking this. What I do suggest is that the tenant must be informed of the reason for the authority’s action so that he can, if so minded, attempt to raise a proportionality challenge (paras 115 and 116).
Court of Appeal
 
Corby BC v Scott; West Kent Housing Association Ltd v Haycraft
[2012] EWCA Civ 276; [2012] HLR 23, 13 March 2012
 
It would only be in a rare case that an Article 8 defence would succeed; exceptional circumstances unrelated to the landlord’s reason for claiming possession did not make the case exceptional; where a review decision was not being challenged by a defendant and no new points were being raised at the hearing the court should not interfere with that decision
The defendants were, respectively, an introductory tenant of a council and an assured shorthold tenant of a housing association. In each case the social landlord claimed possession on the basis that the legal requirements for notice had been satisfied and that they were entitled to possession. In each case the tenant raised a defence based on Article 8. Ms Scott said that she had been subjected to a murderous attack in July 2010. HHJ Hampton refused to make a possession order. Mr Haycraft denied the allegation made against him and relied on ill-health. HHJ Simpkiss dismissed an appeal against a possession order granted to West Kent.
On appeal, Lord Neuberger MR said:
The effect of the reasoning in Pinnock [2011] 2 AC 104 … at least in relation to demoted and introductory tenancies, [is that] ‘it will only be in “very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument’, although ‘exceptionality is an outcome and not a guide’ (para 18).
The facts in Scott ‘get nowhere near justifying the contention that it would be disproportionate for the council to obtain possession’. The ‘murderous attack’ was ‘simply irrelevant to the issue of Article 8 proportionality’ (para 24). It was a case ‘which should not have gone to trial’ (para 26). In relation to Haycraft, the initial allegation was investigated properly by the reviewing panel. Its conclusion was clearly articulated and well reasoned. Mr Haycraft had not come up with any new points which called the finding into question, or any challenge to the procedure or reasoning involved in the review. In such circumstances, the court should not interfere with the decision reached on review. Nor was there any real evidence that his health problems would be exacerbated by eviction. HHJ Simpkiss was entitled to conclude that Mr Haycraft’s pleaded case was not strong enough to justify a hearing on the issue of proportionality.
Lord Neuberger said:
‘… a judge (i) should be rigorous in ensuring that only relevant matters are taken into account on the proportionality issue, and (ii) should not let understandable sympathy for a particular tenant have the effect of lowering the threshold identified by Lord Hope in [Hounslow LBC v Powell [2011] UKSC 8]’ (para 35).
He emphasised:
… the desirability of a judge considering at an early stage (normally on the basis of the tenant’s pleaded case on the issue) whether the tenant has an arguable case on Article 8 proportionality, before the issue is ordered to be heard. If it is a case which cannot succeed, then it should not be allowed to take up further court time and expense to the parties, and should not be allowed to delay the landlord’s right to possession (para 39).
The court allowed Corby’s appeal and dismissed Mr Haycraft’s appeal.
Southend-on-Sea BC v Armour
[2014] EWCA Civ 231; [2014] HLR 23; [2014] 2 P&CR PG7, 12 March 2014
 
An appellate court could only overturn a lower court’s decision that an eviction would be disproportionate if it contained an error of law or was wrong
Mr Armour was an introductory tenant. Southend alleged that he had verbally abused a neighbour, a contractor and a member of its managing agents’ staff. It also claimed that he had switched on the electricity while the contractors were working and that a workman suffered an electric shock. After service of a notice and a statutory review, a possession claim was issued but the trial was delayed for over 11 months. In the meantime, Mr Armour was said to have Asperger’s syndrome and to be suffering from depression. He did not have capacity to defend the claim and a litigation friend was appointed. There were no further incidents before trial and Mr Armour had the support of a number of agencies and family members. Recorder Davies found that it had been proportionate and lawful within Article 8 to seek a possession order but that it would now be disproportionate to grant a possession order, having regard to the absence of complaints since the claim was issued, and the effect that eviction would have on Mr Armour and his 14-year-old daughter. Southend appealed. Cranston J dismissed the appeal ([2012] EWHC 3361 (QB), reported in December 2012 Legal Action 28).
A second appeal to the Court of Appeal was dismissed. Lewison LJ said:
… the test which the courts must apply, whether described as proportionality or as deciding whether eviction is ‘necessary in a democratic society’ is not … a bright line test. It is more in the nature of a value judgment. If a judge is required to apply a clear legal rule to a given set of facts, an appeal court can decide for itself whether that given set of facts measure up to the legal rule. But ‘the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision’ (para 17).
The Court of Appeal could only interfere with the decision if it was ‘wrong’ (para 18). It was open to the judge to refuse to make a possession order. The improvement in behaviour, over a significant period of time, was clearly relevant to the issue of proportionality. What weight to give it was a question for the trial judge.
Birmingham CC v Stephenson
[2016] EWCA Civ 1029; [2016] HLR 44, 27 September 2016
District judge should have given directions for the filing of an Equality Act 2010 defence rather than make a possession order when the genesis of such a defence was made orally at the first possession hearing (see Birmingham CC v Stephenson)
Demoted tenancies
 
Anti-Social Behaviour Act 2003 amended the Housing Act 1985 and Housing Act 1988 to give county courts power to change secure or assured tenancies into demoted tenancies, lacking the rights that are associated with secure and assured tenancies. Under Housing Act 1985 s82A and Housing Act 1988 s6A, local housing authorities, housing action trusts and registered social landlords may apply to a county court for demotion orders. The court can only grant a demotion order if (a) a notice seeking a demotion order has been served or it is just and equitable to dispense with that requirement; (b) it is satisfied that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for unlawful purposes) applies, and (c) it is reasonable to make the order.
Supreme Court (formerly House of Lords)
 
Manchester CC v Pinnock
[2010] UKSC 45; [2010] 3 WLR 1441; [2011] 1 All ER 285; [2010] UKHRR 1213; [2011] HLR 7; [2010] LGR 909; [2010] Times 4 November, 3 November 2010
 
Article 8 ECHR requires courts to have the power to consider whether a possession order would be necessary in a democratic societyTimes 1 AugustTimes 18 October; 21 September 2010, ECtHRTimes 23 May, 13 May 2008, ECtHR
Mr Pinnock lived with his partner and five children in a house which he had rented for some 30 years from Manchester. After complaints of a number of serious incidents of anti-social behaviour on the part of Mr Pinnock’s family (but not himself) at or near the property, Manchester obtained a demotion order under Housing Act 1985 s82A. Subsequently, one of Mr Pinnock’s sons was convicted of obstructing a police officer at the premises and another pleaded guilty to causing death by dangerous driving and driving while disqualified near to the premises. In June 2008, just before the date when Mr Pinnock’s demoted tenancy would have reverted to being a secure tenancy (Housing Act 1996 s143B), Manchester served notice of proceedings for possession. Mr Pinnock requested a review and was represented at an oral hearing by his solicitor. The panel upheld the decision to terminate his tenancy. Mr Pinnock defended the subsequent possession claim. HHJ Holman made a possession order under Housing Act 1996 s143D(2), which provides that a court ‘must make an order for possession unless it thinks that the procedure under [ss]143E and 143F has not been followed’. Mr Pinnock appealed. The Court of Appeal dismissed his appeal ([2009] EWCA Civ 852; September 2009 Legal Action 31). Mr Pinnock appealed to the Supreme Court.
In a single judgment, delivered by Lord Neuberger MR, the Supreme Court held that:
•Article 8 requires courts asked to make possession orders against demoted tenants under section 143D(2) to have the power to consider whether the order would be ‘necessary in a democratic society’; and
•section 143D(2) is compatible with Article 8.
Lord Neuberger stated that the court’s observations relating to local authority landlords applied equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1998, but nothing in the judgment applied to private landowners. After considering theECtHR’s jurisprudence on Article 8 and possession claims in general, he said that if UK ‘law is to be compatible with Article 8 … the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact’ (para 49). After referring to the decisions of the House of Lords in Harrow LBC v Qazi [2003] UKHL 43; [2004] 1 AC 983, Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367, he stated that it was ‘unnecessary to consider them in any detail’ (para 26). As there was ‘now [an] unambiguous and consistent approach of the [ECtHR]’, the Supreme Court had to consider whether it was appropriate to depart from those decisions (para 46). Although the Supreme Court was not bound to follow Strasbourg decisions: ‘Where … there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line’ (para 48). The Supreme Court should now accept and apply the minority view of the House of Lords in Qazi, Kay and Doherty. Lord Neuberger referred to the view that it would only be in exceptional cases that Article 8 proportionality would even arguably give a right for an occupant to remain in possession where there was no such right under domestic law (see, for example, McCann v UK (McCann v UK) and Kay v UK (Kay v UK). However, he stated that consideration of proportionality arguments should not be limited to ‘very highly exceptional cases’. It would be:
… both unsafe and unhelpful to invoke exceptionality as a guide … [E]xceptionality is an outcome and not a guide (para 51). However, a local authority’s aim in wanting possession should be a ‘given’, which does not have to be explained or justified in court. [T]he court will only be concerned with the occupiers’ personal circumstances … the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession (para 53).
He continued by stating that:
… in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way (para 54).
The Supreme Court declined to give further guidance, stating that: ‘The wide implications of this obligation’ to consider the proportionality of making a possession order are ‘best left to the good sense and experience of judges sitting in the county court’ (para 57).
… if an Article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained (para 61).
These comments appear to apply to all kinds of occupancy lacking security of tenure, not just demoted tenancies. The importance of this decision in relation to occupants other than demoted tenants is demonstrated by the following passages:
•‘if domestic law justifies an outright order for possession, the effect of Article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether’ (para 62);
•‘the conclusion that the court must have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited’, for example, Housing Act 1980 s89 and some of the provisions of CPR 55, ‘which appear to mandate a summary procedure in some types of possession claim’ (para 63);
•the submissions ‘that proportionality is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”, and that “the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases”’ seemed to be ‘well made’ (para 64).
An important issue is the extent to which county courts should hear and determine questions of fact arising in such possession claims. Lord Neuberger said:
… once it is accepted that it is open to a demoted tenant to seek judicial review of a landlord’s decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to Article 8 … [ECtHR] jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute (para 73).
Where it is required in order to give effect to an occupier’s Article 8 convention rights, the court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view (para 74).
… a county court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise (para 104).
In relation to demoted tenants, Lord Neuberger stated that: ‘if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2)’ (para 77). ‘[A]n occupier who is the defendant in possession proceedings in the county court and who claims that it would be incompatible with his Article 8 convention rights for him to be put out of his home must be able to rely on those rights in defending those proceedings’ (para 78). Accordingly, ‘ … section 143D(2) should be read as allowing the court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any Article 8 defence which the defendant raises in the possession proceedings’ (para 79).
The Supreme Court disapproved part of the reasoning of the Court of Appeal in Manchester CC v Cochrane [1998] EWCA Civ 1967; [1999] 1 WLR 809, that an introductory tenant could not raise a defence based on the contentions that:
•there had been no breaches of the tenancy agreement;
•the relevant regulations had not been complied with; and
•there had been a failure to comply with the rules of natural justice in the conduct of the review by the panel (para 82).
In such circumstances, ‘Article 8 would require the court to be able to consider the facts, as well as proportionality, for itself’ (para 83).
However, the Supreme Court dismissed Mr Pinnock’s appeal. It noted that: ‘The history of crime, nuisance and harassment on the part of those living at the property in the period leading up to the demotion order … was extraordinary in its extent and persistence’ (para 126). In the light of events since then, many of which were not disputed, it was proportionate to make a possession order.
CHAPTER L
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